It is deeply concerning and foreboding that the Delhi Lieutenant-Governor has approved the use of a Gujarat preventive detention law in Delhi. This law grants the police the power to detain individuals for extended periods without trial and even before any actual offence is committed.
The Delhi police have often displayed a blatant disregard for notions of fairness, impartiality and due process.
They have unabashedly pursued student activists, journalists and politicians opposed to the regime, creating an environment of fear and intimidation. This disturbing trend reached its peak with the police’s false implications of student activists under the draconian anti-terror law, the Unlawful Activities (Prevention) Act (UAPA), and the law of sedition.
One is afraid that giving the Delhi police powers under the draconian Gujarat Prevention of Anti-Social Activities Act, 1985 will further fuel unaccountability and arbitrariness in their functioning.
Preventive detention is one of the most coercive tools that a state in a constitutional democracy has at its disposal. The Supreme Court in the past has called it “repugnant to democratic ideas and an anathema to the rule of law”.
The Gujarat law is inherently arbitrary and sweeping in scope, enabling its massive and flagrant abuse. The high court of Gujarat has repeatedly censured the executive for misusing the law.
Therefore it’s shocking that the consent to extend the Gujarat law in Delhi was given without any public consultation. Though the subject of policing is outside the purview of the elected Delhi government, it does not mean that the elected government can be completely sidestepped on matters of law and order. On a matter as important as bringing into Delhi the preventive detention law, the LG should have consulted the chief minister. However, with an iron grip, the office of LG has arrogated despotic powers, effectively eclipsing the authority of the elected government in all important affairs.
Newspapers have reported that the decision was taken after the Delhi police wrote to the L-G asking for a stricter law to deal with snatchers and drug peddlers.
That’s a lame excuse.
Has the crime of chain snatching and drug peddling in Delhi reached such proportions that it warrants action under preventive detention law instead of the normal process of investigation followed by a criminal trial? Why can’t snatchers and drug peddlers be booked under relevant provisions of the Indian Penal Code and Narcotic Drugs and Psychotropic Substances Act, 1985?
No reliable, cogent data has been provided to justify the introduction of the Gujarat preventive detention law in Delhi. On the contrary, the introduction of such a harsh and unfair law to the national capital shows how the Delhi LG operates in an authoritarian way.
Preventive detention laws were justified in the Constituent Assembly debates as an evil necessity. Article 246 read with Seventh Schedule, List I, Entry 3, empowers the Parliament to pass preventive detention laws for reasons connected with defence, foreign affairs or security of India, and by List III, Entry 9, empowers the Parliament and state legislatures to pass these laws for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community. Article 22 provides important procedural safeguards against arbitrary and procedurally irregular preventive detention orders.
Also read: Gujarat’s Preventive Detention Law Is a Free Pass For Police to Act Without Evidence
Originally intended for use in extraordinary situations threatening the security of the state or public order, the use of preventive detention laws has unfortunately become a routine practice.
Many states like Tamil Nadu, Andhra Pradesh, Telangana and Gujarat have enacted such laws as a convenient shortcut to bypass the normal process of laws and the rigours of the criminal justice system. The state laws are in addition to four central preventive detention laws: the Conservation of Foreign Exchange and Prevention of Smuggling Act (COFEPOSA), 1972; the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980; the National Security Act, 1980; and the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
In contrast to the existing central preventive detention laws, which focus on national and economic security matters, the state laws have transformed into catch-all measures that encompass a wide range of offences and situations unrelated to the state’s security or public order.
From 2017 onwards, there has been a consistent upward trend in the number of individuals held in preventive custody. In the year 2021 alone, the figure reached a staggering 1.1 lakh people, showing an alarming surge of over 23.7% compared to the previous year.
The majority of those detained were facing charges related to smuggling, bootlegging, theft, gambling, robbery and sexual offences.
Shockingly, the state of Gujarat has used the preventive detention law to detain individuals accused of GST evasion, unauthorised sale of anti-Covid medicines, cow smuggling, and even cases involving interfaith couples. This troubling data reveals an ever-widening net of preventive detention being cast for matters that extend far beyond the realm of national security or public order.
Preventive detention laws have become a convenient tool to bypass the rigorous procedures of criminal law. This includes evading the legal obligation to produce an accused before a magistrate within 24 hours, filing chargesheets within 60/90 days, presenting a compelling case for denial of bail, and ultimately proving guilt beyond reasonable doubt to secure a conviction. These crucial requirements of ordinary criminal law are willingly sacrificed in the name of maintaining public order.
Many of the state preventive detention laws, including the Gujarat law, are constitutionally suspect. They give arbitrary and unguided power to the executive without prescribing any guidelines, controls or checks for its exercise.
At what point does the previous record of ordinary crimes transform an accused into a potential threat to public order, warranting their detention under preventive measures? Where does the threshold lie for offences such as video piracy, chain-snatching, bootlegging, or food adulteration to be perceived as jeopardising public order? Unfortunately, the statutes fail to offer any guidance on these vital aspects, leaving the matter shrouded in ambiguity and subject to arbitrary interpretation.
In 2020, the Gujarat high court established a comprehensive set of guidelines that must be adhered to by authorities when issuing preventive detention orders. However, let’s be clear, it’s at best a mere band-aid, applied to a deeply disturbing crisis threatening the fundamentals of the rule of law.
The dangerous course of preventive detention laws is fuelling the descent into authoritarianism.
There has been inadequate judicial scrutiny of state preventive detention laws. They have not been tested on the anvil of Articles 14, 19 and Article 21.
Not long ago, Justice Rohinton Nariman (now retired) presiding over a case of preventive detention under the Telangana statute, expressed astonishment at the absence of a constitutional challenge to the validity of the State law in question.
State preventive detention laws like the Gujarat Anti-Social Activities Act have effectively become a backdoor through which the state executive can thwart bail orders obtained by the accused or keep individuals imprisoned without securing a conviction through a fair trial.
The incarceration of nearly one lakh people every year under a panoply of different preventive detention laws is a grim reminder of the serious curtailment of constitutionally guaranteed freedoms and civil liberties.
Data also reveals that the majority of those detained in Gujarat, Tamil Nadu and Telangana under preventive detention laws hail from the poorest and most vulnerable sections of society.
The Delhi police have repeatedly and shockingly demonstrated a flagrant disregard for the fundamental principles of fairness, and due process. The absolute worst scenario for Delhi is to further empower its police with additional arbitrary powers.
Ashish Khetan is an Associate Professor at Jindal Global Law School, Sonipat.
